Title Board Meeting of April 1, 2020

The Title Board conducted a virtual meeting on April 1, 2020 to consider setting the ballot titles for 11 proposed initiatives.

The Colorado Supreme Court upheld the titles of four ballot initiatives seeking to modify local governments’ jurisdiction and the state’s regulatory authority over oil and gas development.

Timothy Steven Howard objected to the title set by the three-member Title Board for Initiative 300, which would amend the constitution to give counties and municipalities as much control over oil and gas operations as they wished. The measure stops short of allowing localities the ability to enact moratoriums on drilling.

Howard argued that the title did not indicate to voters how local regulations might interact with state law. He also alleged that the provisions about local regulation and moratoriums were separate subjects that proponents combined into one initiative to attract support from voters whose motivations may differ, known as “logrolling.”

“The Initiative may attract a ‘yes’ vote from voters who are unhappy with the current state-level control of oil and gas activities and would support granting some or all of that authority to local governments,” read Howard’s brief to the court, “but who might oppose restricting the authority to enact moratoria, or vice versa.”

In setting a ballot title to appear before voters, the board must determine if a proposed measure meets the constitutional requirement to adhere to a single subject. If so, board members must set a title that is brief but contains all central features of an initiative.

Defending the Title Board’s actions, Assistant Attorney General Anne M. Mangiardi wrote that the moratorium reference was intended to clarify the scope of the initiative, and not to introduce a second policy.

“There is no risk that voters who generally oppose local control would vote for the measure because it does not also grant local governments authority to ban oil and gas development,” she wrote.

Howard also challenged Initiative 311, which would create a new body to replace the Colorado Oil and Gas Conservation Commission and would give that board veto power over relevant rules produced by other regulatory panels. He deemed the latter “wholesale shift of authority” as a second subject, unrelated to the reconstitution of the COGCC.

The attorney general’s office responded that the veto over other regulatory bodies’ work is “merely an effect that #311 has on existing law, not an impermissible second subject.” The brief argued that multi-level approvals for new rules are common in Colorado, and that it made sense for a single initiative to address the composition of a regulatory board as well as the board’s authority.

Initiatives 312 and 313 would both prevent the COGCC — or its new, successor panel, if voters approved Initiative 311 — from repealing or weakening rules related to oil and gas safety, spills, reclamation, noise and flow lines. The title notes that the COGCC would also not be allowed to weaken Air Quality Control Commission rules, “if otherwise given such authority.” The phrase acknowledges that the oil and gas panel currently cannot affect AQCC regulations, but Howard deemed the provision a second subject.

Writing for the Title Board, Assistant Attorney General Emily Buckley wrote that the AQCC provision was intended to provide clarification for voters, especially if Initiative 311 passes, too.

“The Proponents [of the initiative] conceded that the COGCC currently does not have authority to affect the AQCC rules, but Proponents stated they intended to run #312 in tandem with other initiatives that would allow COGCC some degree of approval over AQCC rules,” she explained.

The initiatives now advance to the signature-gathering phase. To appear on the statewide ballot in November, a measure will need to collect 124,632 valid signatures by Aug. 3. Currently, three initiatives have met that threshold, and 17 more have been approved for circulation.

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